_______________________________________________ February 9, 1998 _______________________________________________ GSBCA 13752-RATE In the Matter of TRI-STATE TRANSIT CO. John R. Bagileo of Bagileo, Silverberg & Goldman, Washington, DC; and Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, General Services Administration, Washington, DC, appearing for General Services Administration. Col. James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. BORWICK, Board Judge. This matter involves claims for excess released value charges for shipments under government bills of lading (GBLs) E-1,195,115, E-1,195,116, C-0,997,629, and D- 2,467,637.[foot #] 1 For the reasons stated below, we conclude that claimant is entitled to be reimbursed for the excess released value charges. Three of the four GBLs (E-1,195,115, E-1,195,116 and D-2,467,637) involve shipment of either tank or ammunition trailers (HEMATs). These items were properly classified and ----------- FOOTNOTE BEGINS --------- [foot #] 1 The claim was originally filed at the General Accounting Office (GAO). Congress transferred the review function formerly performed by GAO to the Director of the Office of Management and Budget (OMB) and authorized him to delegate it to any other agency or agencies. Pub. L. No. 104-53, 211, 109 Stat. 514, 535 (1995). The Acting Director of OMB delegated this function to GSA (Delegation, June 28, 1996), and the Acting GSA Administrator redelegated it to this Board (Delegation, July 17, 1996). Later, Congress made permanent the assignment of this duty to the Administrator. Pub. L. No. 104-316, 202(o)(2), 110 Stat. 3826, 3844 (1996). ----------- FOOTNOTE ENDS ----------- shipped as "freight all kinds" (FAK).[foot #] 2 Each of the GBLs contained a provision that the released value was not to exceed $2.50 per pound. The fourth GBL, C-0,997,629, involved a 2 ton truck. The GBL for this commodity also contained a notation that the released value was not to exceed $2.50 per pound. Although that GBL contained the notation FAK, the item classification number was NMFC 190190, and the GBL referenced claimant s tariff/special rate authority 00064200, effective August 1, 1991. The Board requested and received from GSA s Office of Transportation Audits (OTA) a copy of claimant s tender 00064200. In accordance with the instructions of MFTRP 1A, Item 190-4, claimant placed in the tender the notation: "Released value not exceeding $20,000 per vehicle." The shipment was invoiced and billed at claimant s tender rate applicable to the vehicle. MFTRP 1A Item 190-6 provides in part: The released value established . . . in the DOD tender . . . shall be sufficient to release an applicable shipment to the values for the commodity described in the bill of lading, without the necessity of the shipper providing a released value statement on the bill of lading. . . . If a value exceeding the released value is stated on the bill of lading, such valuation shall control and the following excess value charges shall apply. ----------- FOOTNOTE BEGINS --------- [foot #] 2 By policy letter of April 24, 1990, the Military Traffic Management Command (MTMC) determined that wheeled vehicles would no longer be routed as FAK. That policy was implemented in a change to Military Freight Traffic Rules Publication (MFTRP) 1A Item 112(C), dated October 19, 1992, but effective April 24, 1990. The change specified that FAK rates would not apply to self-propelled vehicles (including NMFC Item 190190 and 190210) or to all other commodities for which a DoD Unique Commodity (DODUC) code had been assigned by MTMC headquarters. In Tri-State Motor Transit Co., B-254372 (July 15, ___________________________ 1994), GAO held that the instruction changes could be applied retroactively to shipments after April 24, 1990 and that the items shipped as FAK should have been billed at rates applicable to the specific commodity description. That case, however, involved self-propelled vehicles. The trailers shipped by these three GBLs were not self-propelled vehicles and were not assigned specific DODUC codes for classification or rate purposes, and thus were properly classified as FAK. ----------- FOOTNOTE ENDS ----------- Excess Released Valuation Excess Valuation Charges a. Released to a value Base transportation rate exceeding $20,000 per in carrier[ ]s tender each vehicle in the plus an excess value shipment charge of 15 cents for each $100 or fraction thereof by which the declared value of the shipment exceeds $20,000 per vehicle. Claimant seeks the excess released value charges for the items in the GBL shipped as FAK as well as the excess released value charges for the 2 ton truck shipped as the specific commodity Item 190190 in GBL C-0,997,629. The Government does not dispute that MFTRP 1A Item 190-6 applies to specific commodities as well as to commodities shipped as FAK. In this respect MTMC states: Yes, the default released value which is included in a carrier s rate offer can be overridden with a specifically declared value of the vehicles and or shipment which is in excess of the default released value. Claimant seeks excess valuation charges of $9.75 each for GBLs E-1,195,115 and E-1,195,116; $19.50 for GBL C-0,996,629; and $21.45 for GBL D-2,467,637. Claimant s calculations of excess value charges are faithful to the method for establishing the excess released value as stated in the MFTRP. The Government, however, maintains that the released value statements in the GBLs are not declarations of excess released value. Both this Board and the GAO have considered this "released valuation" issue and have concluded that the Government is wrong. Tri-State Motor Transit Co., GSBCA 14352-RATE (Jan. 6, 1998); Tri-State Motor Transit Co., GSBCA 14245-RATE (Nov. 26, 1997); Tri-State Motor Transit Co., GSBCA 13839-RATE, 97-1 BCA 28,953; Tri-State Motor Transit Co., GSBCA 13746-RATE, 97-1 BCA 28,951; Tri-State Motor Transit Co.--Reconsideration, B-254378.2, et al. (July 5, 1995). We follow our earlier decisions and the decisions of the GAO. Tri-State is entitled to payment on its claims. __________________________ ANTHONY S. BORWICK Board Judge